The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com

Wednesday, September 28, 2016

Another Johnson case leads to 3 opinions

This time it's United States v. Vail-Baron. Judge Rosenbaum writes the majority. Judge Jordan concurred. And visiting judge Eugene Siler (from the 6th) dissents. Judge Rosenbaum starts off her opinion this way:

When I was growing up, my parents told me not to judge a book by its cover. The Supreme Court has expressed an analogous concern about concluding that a crime qualifies as a violent crime under the Armed Career Criminal Act (“ACCA”), based solely on the name of the crime. See Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551, 2560 (2015) (discussing whether Connecticut’s offense of “rioting at a correctional institution,” a crime that the Supreme Court characterized as “certainly sound[ing] like a violent felony,” qualifies as a violent felony under the residual clause of the ACCA).1
This case raises the question of whether the Florida crime of felony battery—a crime that, from its name, may sound like a crime of violence—actually satisfies the definition of “crime of violence” under §2L1.2 of the Sentencing Guidelines when it is committed by mere touching. Heeding the Supreme Court’s warning, we have carefully compared the elements of felony battery under Florida law to the “elements clause” of § 2L1.2’s definition of “crime of violence.” Based on our review, we now hold that felony battery under Fla. Stat. § 784.041 does not qualify as a “crime of violence” under § 2L1.2 when it is committed by mere touching. For this reason, we vacate Vail-Bailon’s sentence and remand for resentencing.

Then what's the purpose of inviting a visiting judge? The converse is actually worse: where an invited judge writes an overly broad majority opinion over a dissent. At least here the dissenting view isn't law.

So they can all become friendly with each other; that way, should any of the judges be named in a lawsuit, or indicted, or otherwise get entangled in the legal system, they may have sympathetic judges on the tribunal who know them from their time as a visiting judge.

Otherwise the "visiting judge" scheme looks like an unconstitutional racket. The jurisdiction of a district judge is limited by law to the district court. (and senior status district judges have even less jurisdiction, limited by assignment to cases by the chief district judge).

By what legal authority does a district judge get to jump the shark to the circuit court? If no legal authority currently exists, judges will concoct one to their benefit.

Do visiting judges get paid money? Who pays, and how is that constitutionally tolerable?

The Southern District of Florida blog was started by David Oscar Markus, who is a criminal trial and appellate lawyer in Miami, Florida. He frequently practices in federal courts around the country, including his hometown, the Southern District of Florida and the 11th Circuit Court of Appeals. He is a former law clerk to then-Chief Judge of the District, Edward B. Davis.